In a closely divided (4-3) opinion in Smith v. Pavan,the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents.

Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.

Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion. In a well-wrought dissent by Justice Paul Danielson, he argues:

[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.” Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status. Thus, the majority is clearly wrong in holding that Obergefell has no application here. Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married couple who challenged the Tennessee law providing that their child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.

Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.

[citations to Obergefell omitted].

For the majority, biology was the paramount "truth" that vital records should reflect. Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.

However, the relevance of Smith v. Pavan even in Arkansas is unclear. As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:

Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.

Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:

First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.

It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.

The Creighton Law Review, Creighton’s 2040 Initiative, and the Werner Institute invite you to contribute to the Law Review’s June 2017 issue and/or to attend the 50 Years of Loving symposium hosted by the 2040 Initiative and the Werner Institute at the Creighton School of Law. The symposium will explore how the 1967 U.S. Supreme Court decision of Loving v. Virginia has influenced U.S society institutionally, demographically, and relationally.

Race in the United States has historically been socially constructed through interlocking cultural narratives, including law, and cultural practice, including institutions. Racism is a social system enacted and perpetuated by the interactions and relationships of individual people. Exploring the disruptive effects of the interracial “mixing” protected by Loving v. Virginia offers an opportunity to deepen understanding of systemic racism and to develop systems-based strategies for continuing the struggle for social justice. At a time when the demographics of the U.S. are shifting away from a white majority, deconstructing systemic racism is an essential project.

Loving v. Virginia, 388 U.S. 1 (1967), ended legal prohibitions against interracial marriage in the U.S. By eliminating of longstanding legal sanctions against “miscegenation,” Loving disrupted the pre-existing social system. Loving rejected racial separation and hierarchy and endorsed relationships across previously uncrossable racial lines. Since Loving, the number of interracial marriages has grown significantly: “Nearly 15 percent, or one in seven, of all new marriages in 2008 were between people of different races or ethnicities.”*

The effects of these marriages extend beyond those who are themselves married. “[M]ore than a third of all adults surveyed reported having a family member whose spouse is of a different race or ethnicity – up from less than a quarter in 2005.”* Since Loving, the proportion of the U.S. population with multiple racial heritages has grown dramatically. Moreover, the children born as a result of Loving also have disrupted the social construction of race itself, with more people self-identifying as of more than one race, biracial, multiracial, or mixed.

The Law Review seeks submissions exploring these issues – to range from reflections (up to 1000 words) and essays (approximately 2500-3000 words) to articles (no more than 7000 words, not including references and footnotes). Draft abstracts of up to one page and queries may be addressed to Research Editor Sean Nakamoto at seannakamoto@creighton.edu no later than January 15, 2017. Final submissions will be March 20, 2017. There will be an opportunity at the symposium for selected authors to discuss their submissions at the 50 Years of Loving symposium at Creighton University in March, 2017.**

Authors are also encouraged to join the moderated online discussion on the effects of the Loving decision on our society hosted by the 2040 Initiative and ADRHub at http://blogs.creighton.edu/creighton2040/50-years-of-loving-moderated-online-discussion. Selected excerpts from this discussion will also be featured in the June 2017 Creighton Law Review edition. Discussion entries should respond to the following question: From the perspective of your academic discipline or professional institution, what are the questions, issues, or tensions that have arisen out of 50 Years of Loving?

In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.

The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote. The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted." But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations." Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny. Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.

Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level. The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech." Instead, it is a state-created function and is subject to limitations by the state. It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly." Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."

In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking. Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case": "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created." Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."

Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal. And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times." Meanwhile, the Pennsylvania Democratic Party filed a complaint against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.

In an Order in Florida Democratic Party v. Scott, United States District Judge Mark Walker extended the voter registration until Wednesday, October 12, at 5:00pm and also scheduled a hearing for that afternoon for further determinations.

As Judge Walker explained the facts:

Florida’s voter registration deadline for the 2016 election cycle is currently set for Tuesday, October 11, 2016. For aspiring eligible voters, failing to register by that date effectively forecloses the right to vote in the 2016 election. Just five days before that deadline, however, Hurricane Matthew bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their homes. Like Hurricane Matthew, the voter registration deadline also approached and bore down on the State of Florida. Citing the impending Hurricane, many urged the Governor of Florida, Defendant Rick Scott, to extend the deadline. But Defendant Scott demurred, asserting instead that Floridian’s had other avenues to ensure that their right to vote was protected.

Judge Walker first considered whether the Florida Democratic Party had standing to assert the rights of voters, quickly concluding it had. Judge Walker next decided that while the second named defendant, Ken Dentzer, as Secretary of State was a proper defendant, Governor Scott was not. Judge Walker concluded that while Governor Scott had statutory general emergency management powers, this did not include extending voter registration. Thus, the judge held that Governor Scott has no power in this regard and is not a proper defendant.

On the merits in the context of the Temporary Restraining Order (TRO), Judge Walker applied the well-established test of Burdick v. Takushi (1992) regarding challenges to state election laws: courts considering a challenge to state election laws “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’”

Judge Walker concluded there was a severe burden on voting rights. He noted that Florida's statutory framework includes no provision that extends the voter registration in an emergency. Given the hurricane, "Florida’s statutory framework completely disenfranchises thousands of voters, and amounts to a severe burden on the right to vote." A severe burden warrants strict scrutiny. Judge Walker concluded that even if Florida could articulate a compelling state interest - - - adding in parenthesis ("and this Court doubts that it can") - - - it "is nonsensical to argue that it is narrowly tailored to that interest." Further, even if more lenient scrutiny was afforded, Florida's statutory scheme would be unconstitutional.

Even assuming that Florida’s statutory framework was subject to a more flexible Anderson–Burdick test, it still would be unconstitutional. In no way could Defendants argue that there is some sort of limitation that requires them to burden the constitutional rights of aspiring eligible voters. Many other states, for example, either extended their voting registration deadlines in the wake of Hurricane Matthew or already allow voter registration on Election Day. There is no reason Florida could not do the same. In so ruling, this Court is not suggesting that Florida has to allow voter registration up to Election Day. Rather, it simply holds that the burden on the State of Florida in extending voter registration is, at best de minimis. . . .

Finally, Florida’s statutory framework is unconstitutional even if rational basis review applied (which it does not). Quite simply, it is wholly irrational in this instance for Florida to refuse to extend the voter registration deadline when the state already allows the Governor to suspend or move the election date due to an unforeseen emergency.

[citations omitted].

After finding that the TRO criteria supported the restraining order, Judge Walker added that the order was necessary state-wide because "Hurricane Matthew’s effects are not circumscribed to one region of the state." He reasoned that it "would be grossly inappropriate, for ex- ample, to hold that aspiring eligible voters in Jacksonville could register later than those in Pensacola."

Therefore, this Order holds that Florida’s current statutory framework is unconstitutional. That unconstitutionality is not limited to those in the areas most affected by Hurricane Matthew. It extends to the entire State of Florida.

Thus, Floridians have at least one additional day to register to vote for the November 9 election.

UPDATE:

In a brief Order after the hearing on October 12, Judge Walker granted the preliminary injunction "for the same reasons" articulated in the TRO order and extended the deadline to Tuesday, October 18, 2016.

In a nearly 100 page complaint filed in the federal court in D.H. v. City of New York, the plaintiffs argue that New York's Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], is unconstitutional on its face and as applied. Represented by The Legal Aid Society, the central constitutional claims are that the statute is unconstitutionally vague under the due process clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

The intersections and distinctions between vagueness under the Due Process Clause and overbreadth under the First Amendment were elucidated by the United States Supreme Court in Holder v. Humanitarian Law Project (2010) and the complaint in D.H. might serve as a textbook example of these issues. Essentially, the complaint alleges that the NY Penal Code section, §240.37[2] , does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association. Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them. One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise ﬂawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs ofﬁcers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear. In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, ofﬁcers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54]. The "black pea coat" as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant "wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes."

Loitering statutes in general, and more specifically loitering (and even soliciting) for "criminal sex" statutes, whether that sex is criminalized because it is commercial, public, or "unnatural" (as in previous sodomy prohibitions), have always been constitutionally problematic. And the use of dress or appearance to establish "probable cause" or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brownupholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in Welch v. Brown.

The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause. The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses.

The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct. The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity. The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.

The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.

So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.

The Seventh Circuit ruled this week that language in a state statute criminalizing the possession of cocaine near a "youth program center" was unconstitutionally vague. The ruling sends this case of hyper-aggressive prosecution back for resentencing (though the criminal law has been repealed).

The case arose when police arrested Walker Whatley at his father's home on an unrelated charge. The officer discovered a bag with just over three grams of cocaine in Whatley's pocket. Ordinarily, this would have constituted a Class C felony under state law, with a sentence of two to eight years. But because Whatley's dad lived 795 feet from the Robinson Community Church, Whatley was charged with a Class A felony of possessing more than three grams of cocaine within 1,000 feet of a "youth program center"--a charge that brought 20 to 50 years. Whatley was convicted and got 35 years--more than four times the maximum sentence for a Class C felony.

Whatley appealed through the state courts, and then brought a federal habeas claim. The district court rejected that claim, however, ruling that Whatley defaulted.

The Seventh Circuit reversed. The court ruled that the statute was unconstitutionally vague, because it defined "youth program center" as a facility with "regular" youth programs, and because "regular" didn't put a person of ordinary intelligence on notice of what was illegal. (The church hosted youth programs, but only a few times a week, and only for a few hours at a time.)

The court rejected the state court's reasoning that fair notice wasn't required, because the statute created strict liability; the court said that reasoning was "inconsistent with Supreme Court precedent that requires fair notice for all criminal statutes." "The lack of an intent element in the statute does not cure the vagueness problem; it makes it worse by making unknowing defendants absolutely liable for violating an indeterminate standard," that is, the definition of "youth program center."

The very harsh sentencing also played a factor:

In sum, a triad of factors convince us that the state courts were not simply wrong but unreasonable in applying federal law on vagueness in Whatley's case: (1) the use of the word "regular" in the definition of "youth program center" provides no objective standard, and thereby fails to place persons of ordinary intelligence on notice of the conduct proscribed and allows for arbitrary enforcement; (2) defendants are strictly liable for violating the terms of this nebulous sentencing enhancement, exacerbating the effect of the subjectivity; and (3) the consequences of violating this indeterminate strict liability provision are extreme: an increase in the sentencing range from 2-to-8 years to 20-to-50 years' imprisonment.

In its opinion in Planned Parenthood of the Great Northwest v. State of Alaska, the Alaska Supreme Court held unconstitutional the 2010 voter-enacted Parental Notification Law which required 48-hour advance parental notice before a physician may terminate a minor’s pregnancy, but importantly not before a physician could provide other care. The court's majority opinion, authored by Justice Daniel Winfree, found that the Parental Notification Law violates the Alaska Constitution’s equal protection guarantee by unjustifiably burdening the fundamental privacy rights only of minors seeking pregnancy termination, rather than applying equally to all pregnant minors.

Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision. The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests.

The court noted that to "justify differently burdening fundamental privacy rights, the State’s interests in doing so must be compelling," and that the State asserts two main interests as justifying the Notification Law’s disparate treatment of pregnant minors: (1) “aiding parents to fulfill their parental responsibilities” and (2) “protecting minors from their immaturity.” The court accepted that these were compelling interests, even as it refined the immaturity interest because "immaturity in and of itself is not a harm." Instead, the court defined the interest in “protecting minors from their immaturity” as "protecting minors from specific pitfalls and dangers to which their immaturity makes them especially susceptible" which in this case would be risks to mental and physical health and from sexual abuse.

The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests. As to the parental responsibility interest:

We conclude that vindicating the State’s compelling interest in encouraging parental involvement in minors’ pregnancy-related decisions does not support the Notification Law’s disparate treatment of the two classes of pregnant minors. Parents do have an “important ‘guiding role’ to play in the upbringing of their children.” We have said that “it is the right and duty, privilege and burden, of all parents to involve themselves in their children’s lives; to provide their children with emotional, physical, and material support; and to instill in their children ‘moral standards, religious beliefs, and elements of good citizenship.’ ” But as the State acknowledged at oral argument, this must be true for all pregnant minors’ parents, not just those whose daughters are considering termination.

[footnotes omitted; emphasis added]. Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being

under-inclusive because the governmental interests asserted in this case are implicated for all pregnant minors — as they face reproductive choices and as they live with their decisions — and the asserted justifications for disparate treatment based upon a minor’s actual reproductive choice are unconvincing.

One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis. Instead, the concurring opinion argued that the 2010 statute was unconstitutional under the state constitution's privacy provision.

One of the five Justices of the Alaska Supreme Court dissented, arguing that the 2010 Parental Notification law violated neither equal protection nor privacy and was thus constitutional.

As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions.

The United States Supreme Court's opinion in Whole Woman's Health v. Hellerstdet (previously Cole), declares unconstitutional both the admitting privileges and surgical center requirements of the controversial Texas HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). Justice Breyer, writing for the five Justice majority found that the regulations place a substantial obstacle and constitute an undue burden on the abortion right.

In the first case to address abortion since 2008, the Court clearly reaffirmed the substantial obstacle/undue burden test and found that the Texas' statutory scheme was too restrictive. The divisions amongst the Justices was clear in oral arguments and previous proceedings (a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part).

The bulk of the 107 page opinions is Justice Alito's dissent, joined by Chief Justice Roberts and Justice Thomas. (Note that even if Justice Scalia was still on the bench, the result would have been the same). Justice Thomas also wrote separately.

Justice Breyer's opinion for the Court rebuked the Fifth Circuit for incorrect doctrine.

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.

[citations omitted].

With the correct standard (re)articulated, the Court then carefully considered the "record evidence" in this extensive litigation and agreed with the district judge that the Texas regulations placed substantial obstacles in the path of women seeking abortions, thus meeting the undue burden test. The Court also found that the Texas restrictions did little to serve the state's articulated interests in protecting women's health and may actually have undermined the state's interests.

On the admitting privileges requirement, the Court rehearsed the expert evidence at trial and also pointed to amicus briefs, both to explain the context of admitting privileges and the effect of the requirement (including clinic closures). As to the relation to the state's articulated interest in women's health, the Court added:

when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

The Court also specifically refuted the dissenting opinion's reliance on a well-known Pennsylvania scandal involving Gosnell:

Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.

Justice Breyer's opinion for the Court engaged in a similar analysis as to the surgical center requirement. Again, the Court stated that the mandate does not serve the stated interests in women's health" "many surgical-center requirements are inappropriate as applied to surgical abortions." And again, the Court found that the record evidence as well as "common sense" meant that the (unnecessary) requirements would result in clinic closures which would result in a substantial obstacle to women's reproductive access.

While the Court's opinion is often very specific, Ginsburg's separate but very brief concurrence briefly strikes a broader note:

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.

But whether one takes the specific or broader view, Whole Women's Health is a clear message to lower courts that their judicial function is to apply the current rule in a rigorous manner to preserve abortion access.

In its highly anticipated opinion in Williams v. Pennsylvania, the United States Supreme Court found that the failure of Chief Justice of the Pennsylvania Supreme Court Ronald Castille to recuse himself in the death penalty review of Williams' postconviction appeal constituted a violation of the Due Process Clause.

Recall that Chief Justice Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row." One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.

Writing for the five Justice majority, Justice Kennedy relied on the Court's previous decision in Caperton v. A.T. Massey Coal. Co. in 2009 - - - which Kennedy also authored - - - to articulate the applicable "objective standard" of recusal when the "likelihood of bias on the part of the judge 'is too high to be constitutionally tolerable.'" While Kennedy noted that the "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor," the Court articulated a clear rule:

The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

This rule, the Court reasoned, is based upon the due process guarantee that “no man can be a judge in his own case,” which would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision."

As to the passage of time between the prosecutorial and judicial events, the Court reasoned that

A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.

As to the argument that Castille's authorization to seek the death penalty against Williams was insignificant in a large office, the Court specifically found that "characterization cannot be credited." First, the Court stated that it would not assume that the District Attorney treated so major a decision as whether or not to pursue the death penalty as a "perfunctory task requiring little time, judgment, or reflection." Second, the Court noted that "Chief Justice Castille's own comments while running for judicial office" refute any claim that he believed he did not play a major role in seeking death sentences. And third, the Court noted that claim and finding that the trial prosecutor had engaged in multiple and intentional Brady violations, it would be difficult for "a judge in his position" not to view this as a "criticism of his former office, and, to some extent, of his own leadership and supervision as district attorney."

As to the argument that Castille did not cast the "deciding vote" - - - unlike the situation in Caperton - - - and so any error was harmless, the Court stressed the role of the court as a unit:

A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de- means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.

Chief Justice Roberts, joined by Justice Alito, and Justice Thomas writing separately, dissented - - - not surprising given that they have also dissented in Caperton. Roberts's opinion draws the line between due process and judicial ethics: just because it was an ethics violation, does not mean it is a due process violation. Roberts states that it is "up to state authorities" to determine whether recusal is required.

In sum, this extension of Caperton to judicial decisions by former prosecutors and the Court's articulation of a clear rule should result in a new regime of uniform recusal mandated by the Due Process Clause.

Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.” Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.

But while this allegation of bias seems unprecedented and even alarming, the notion that judges are biased because of their identity is nothing new.

Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay. As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary.

This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant.

And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania,argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.

The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult. Chief Justice Roberts's dissenting opinion in Capertonillustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions).

No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage. If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge.

The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].

As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court. (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage. As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":

The complaint gives a good chronology of the various events which have been contentious. As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.

One of the more interesting aspects of the ethics charges is this:

On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples. His Administrative Order states in part:

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

[paragraph 38]. In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law." However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."

Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:

Canon 1. A judge should uphold the integrity and independence of the judiciary.

Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.

Canon 3. A judge should perform the duties of his office impartially and diligently.

Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice. Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.

In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

The panel stated:

The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges;United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.

In any event, for present purposes we need not gild the lily. Our prior mandate was clear . . .

[citations and footnote omitted].

After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course." Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."

The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable. But the First Circuit did cite contrary authority and made clear its disagreement. The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.

In his opinion in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.

The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges. However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.

On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:

Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).

In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).

While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).

Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”

While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).

The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:

Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).

In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.

The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.

The controversial North Carolina statute passed last week, known as HB2, entitled "An Act to provide for single-sex multiple occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations," has been challenged in a Complaint filed this morning, Carcaño v. McCrory, in the Middle District of North Carolina. The plaintiffs are three individuals as well as the organizations ACLU North Carolina and Equality North Carolina.

As the Act's title and the complaint's description note, HB2 has two distinct aspects relating to LGBT issues.

First, it mandates that school boards and state agencies, including the university and community college systems, "shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex."

Second, in Part III of the bill, it will "supersede and preempt" any "ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to the regulation of discriminatory practices in employment." The bill amended the state-wide policy prohibiting discrimination on the basis of "sex" to read "biological sex," thus making the intent clear. As the complaint alleges, the city of Charlotte had passed a non-discrimination ordinance on the basis of sexual orientation and gender identity, prompting the legislative action.

(Interestingly, Part II of the bill supersedes and preempts local ordinances relating to wage and hour provisions.)

Not surprisingly, the first count of the Complaint challenges HB2 based on the Equal Protection Clause of the Fourteenth Amendment. It argues that HB2 violates the equality rights of transgendered persons and sexual orientation minorities and that such classifications should be evaluated under heightened scrutiny. It also contends that the North Carolina act was based on animus. Recall that in Romer v. Evansthe United States Supreme Court held that Colorado's Amendment 2, which similarly banned all local laws that prohibited discrimination on the basis of sexual orientation, violated the Equal Protection Clause, reasoning that the animus of the law was not a legitimate government purpose. The Complaint here contains several expressions by legislators - - - for example,“You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are in there" - - - that would presumably go to animus.

The Complaint also alleges violations of substantive due process under the Fourteenth Amendment. In Count II, the claim is a right to privacy for transgendered individuals. In Count III, the claim is a more novel one based on the right to refuse medical treatment:

H.B. 2 forces transgender people to undergo medical procedures that may not be medically appropriate or available in order to access facilities consistent with their gender identity.

Not all transgender individuals undergo gender confirmation surgery. For some, the surgery is not medically necessary, while for others it is medically impossible. For example, because medical treatment for gender dysphoria is individualized, hormone treatment may be sufficient to manage the distress associated with gender dysphoria for some individuals. Surgery may be medically necessary for others who do not have health insurance coverage for it and cannot afford to pay for the surgery out-of-pocket.

Some states require proof of surgery before they will allow the gender marker on a birth certificate to be changed. For those born in North Carolina, state law requires proof of “sex reassignment surgery.” N.C. Gen. Stat. § 130A-11B.

In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

The First Circuit thus remandedConde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a Joint Motion for Entry of Judgment with a proposed order.

In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision. This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama.

Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":

the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.

The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state."

Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush.

Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].

In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage.

[updated: March 11, 2016: Further discussion of these issues available here].

The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses. And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.

Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue. In a March 2015 opinion in this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API, the court, without Justice Moore and over a dissent by Justice Shaw held that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment. A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.

First, he provides a "statement of nonrecusal." He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."

Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it. He writes quite personally:

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West

Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.

Third, Chief Justice Moore's opinion is the major, if not majority opinion.

The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes. It reads in full:

Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order. He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."

It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.

The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil." They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.

[footnote omitted].

Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point. But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.

The Court issued an Order today in June Medical Services v. Geeinvolving Louisiana's abortion statute "The Unsafe Abortion Protection Act, HB 388. The district judge had found the Louisiana's statute's admitting privilege provision was unconstitutional and issued a preliminary injunction. The Fifth Circuit in a 15 page opinion granted the state's emergency motion to stay the district judge's preliminary injunction. Thus, the Court's Order essential reinstates the injunction against the Louisiana statute.

The Louisiana statute is similar to Texas's HB 2 at issue in Whole Woman's Health v. Hellerstdet (previously Cole), argued before the Court on Wednesday. In today's Order regarding the Louisiana statute, the Court referenced Whole Woman's Health:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated. Justice Thomas would deny the application.

In the Whole Woman's Healthoral argument, Justice Alito mentioned the Louisiana litigation twice, both times in regarding to the evidence in the case about the precise number of abortions that were being performed. But on the constitutional issues, it does seem as if the decision in Whole Woman's Health will be determinative regarding the Louisiana statute's constitutionality.

The Court heard oral arguments today in Whole Woman's Health v. Hellerstdet (previously Cole), the case being touted as the most important abortion rights case in many years. Recall that the Court granted certiorari to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). A divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. Importantly, this is the decision that would stand should the Court split 4-4. The most likely scenario of such a split would be Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy on one side and Justices Ginsburg, Breyer, Kagan, and Sotomayor on the other. The most likely scenario of a reversal of the Fifth Circuit and a finding that HB2's provisions are unconstitutional is generally considered to be Justice Kennedy joining the Justice Ginsburg group. Not surprisingly then, Justice Kennedy will be the focus of most any analysis of today's argument.

And indeed, Justice Kennedy took an active role in today's argument in which each of the advocates was accorded extra time in part because of the procedural issues involved regarding the challenge to HB2 as applied and what contentions may have been precluded by the previous facial challenge. While this issue did occupy the beginning of Stephanie Toti's argument on behalf of Whole Woman's Health, and questions regarding remand were raised - - - including by Justice Kennedy - - - it is unclear whether there is sufficient enthusiasm for deciding the case on procedural issues.

Instead, as Solicitor General Donald Verrilli, arguing in support of Whole Woman's Health, phrased it, the question before the Court is whether the right to abortion "is going to retain real substance" and "whether the balance ­­ struck in Casey still holds." Justice Kennedy was in the majority in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey authored by Justice O'Connor and which upheld the essential core of Roe v. Wade. Scott Keller, the Attorney General of Texas, not only accepted Casey in his argument but argued that it was the petitioners - - - Whole Women's Health - - - that were "trying to upset the balance that was struck in Casey."

The "balance" of Casey could be said to reside in the "undue burden" standard that the Court articulated, but today's argument displayed some of the ambiguities with that standard. On one view, which seemed to be the one Chief Justice Roberts was articulating, the statute has to pass "rational basis" and then it is measured again as to whether there is an undue burden. On the other view, the "undue burden" is measured with regard not only to the exercise of the right to an abortion but measured against the level of the state interests. Justice Breyer articulated this understanding, but importantly, in a colloquy with the Texas Attorney General after a question by Justice Alito, Justice Kennedy also seemed to adhere to this view:

JUSTICE ALITO: Would it not be the case that - - - ­­ would it not be the case - - - that a State could increase the ­­ the standard of care as high as it wants so long as there's not an ­­ an undue burden on the women seeking abortion? So, you know, if they could ­­if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?

MR. KELLER: No. Provided that women do ­­are able to make the ultimate decision to elect the procedure.

JUSTICE KENNEDY: But doesn't that show that the undue ­burden test is weighed against what the State's interest is?

MR. KELLER: Justice Kennedy - - -

JUSTICE KENNEDY: I mean, are they ­­ are these two completely discrete analytical categories, undue burden, and we don't look at the State’s interest?

On the question of the state's interest, Texas Attorney General Keller had a difficult time responding to the questions from Justices Ginsburg, Breyer, Sotomayor, and Kagan. Comparisons to dental procedures and colonoscopies prevailed, and on the issue of nonsurgical abortions requiring the taking of two pills which Texas law required be done at an ambulatory surgical facility, some Justices pressed especially hard. The "abortion is different" argument of Texas Attorney General Keller seemed especially unconvincing here.

The actual effect of the HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements on the closing of clinics was raised at numerous times, with Justice Kennedy interestingly interjecting the precise percentage - - - 20% - - - of the capacity of licensed facilities after the passage of HB2. Justice Ginsburg found it "odd" that Attorney General Keller pointed to the ability of women to go across state lines to New Mexico - - - which does not have similar restrictions - - - to support his contention that women were not substantially burdened.

The oral argument did little to upset the pre-argument predictions. Justice Alito was most hostile to the petitioners, and although Justice Thomas asked no questions today unlike Monday, his views on abortion do not seem in flux. Justices Ginsburg, Breyer, Kagan, and Sotomayor did not seem to find the arguments on behalf of Texas credible. While the Chief Justice has known to be surprising and could possibly craft a narrow opinion, Justice Kennedy is occupying the center. It does seem, however, as if that center tilts slightly back toward Casey and away from HB2.

The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.

The central case in today's oral argument was Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court. [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness]. The problem is how - - - or even whether - - - to apply the 5-4 decision in Caperton, which involved judicial bias resulting from campaign contributions.

Stuart Lev, arguing for Williams, faced an almost-immediate question from Chief Justice Roberts, who dissented in Caperton, asking whether the nature of the decision of the former-prosecutor now-Justice should matter - - - was it mere policy or something more individualized? Justice Alito, who also dissented in Caperton, was wary of constitutionalizing the matters of recusal without clear lines. On the other hand, Ronald Eisenberg, arguing for Pennsylvania, seemed to admit that there could be cases in which recusal was necessary, but stressed the long time involved here - - - 30 years - - - which at one point prompted Justice Kennedy to ask "So the fact that he spent 30 years in solitary confinement actually helps the State?" (Eisenberg noted that this wasn't "exactly" the situation). Justice Sotomayor stressed that what was important was that Castille was prosecutor and judge in the "same case." For both sides, much of the wrangling was over what any "rule" should be - - - with the background of the Caperton rule being fluid rather than rigid.

The fact that Castille was only one of the Justices was important, but perhaps less so than it would be for another court. The idea that a judge simply "votes" for a result was looked on with disfavor. As Justice Kennedy stated:

But if - - - ­­ if we say that, then we say that being a judge on a 15­ judge court doesn't really make much difference. You ­­ - - - you don't have a duty, and you don't have can't persuade your colleagues. It's very hard for us to write that kind of decision.

Earlier in the argument, there was some discussion of the remedy - - - and the "unsatisfying" remedy (as Justice Kagan phrased it) of sending the case back to the Pennsylvania Supreme Court to (re)consider the recusal motion. Lev, arguing for Williams, noted that this was the remedy in Caperton and also that the "Pennsylvania Supreme Court is constituted differently," now than it was then. "There were three new justices elected this last November and took office in January."

But what rule should the Court instruct the Pennsylvania Supreme Court to apply? This is likely to divide the Court just as it did in Caperton. But there does seem to be a belief among a majority of Justices that the judicial ethical rules alone are not protecting due process.